The applicant, a minor whose parents had separated, was living with his grandparents and being supported by them at the time of his father's death. The father was not contributing to his son's support or maintenance except that he provided for him clothing, some life insurance, and at times assisted the grandparents on the farm. On the death of the father as a result of an accident while in the employ of respondent, the child applies through his guardian for compensation as a dependent under the statute.

HELD: 1. That the law does not limit dependency of minor children to cases where actual support was being furnished or contributions made, as such a rule would in many instances exclude children from the benefits of a law that was clearly intended for their protection.

2. Where there is a direct legal obligation to support, as in the case of a father to his minor children, coupled with the reasonable probability of such obligation being fulfilled, dependency is established even though no support was in fact being furnished at the time of the workman's death.

Application by Samuel J. Malzac for compensation for the death of his father, as a dependent within the meaning of the Workmen's Compensation Law. Granted.

Opinion by the Board:

Samuel Malzac, the father of applicant, while working as a teamster for defendant Lumber Company, was instantly killed

by the fall of a gin-pole used in skidding logs. It is conceded that his wages amounted to $50 per month and that the accident arose out of and in the course of the employment. The remaining facts are stipulated by the parties as follows:

"Deceased left surviving him a wife, Blanche Malzac, with whom he had not lived since September, 1912, and to whose support he did not contribute since that date, and said wife makes no claim for compensation."

The stipulated facts then proceed as follows:

"Deceased also left surviving him a minor son, Samuel Malzac, Jr., who was born December 25th, 1909, but said minor son, when about 4 or 5 months old, was left with Alphonse Malzac, his grandfather, and has since that time been making his home with said Alphonse Malzac; that the father, the deceased, has not in any way contributed to the support or maintenance of Samuel Malzac, Jr., since this minor son went to the home of his grandfather, excepting that during the summer of 1913, deceased bought a complete outfit of clothing for his son, worth approximately $9.00; excepting that during the months of March and April, 1911, said Samuel Malzac, deceased, and Blanche Malzac, his wife, lived together for a period of four or five weeks, during which time said Samuel Malzac supported and cared for said child, and that again in the months of August and September, 1912, said Samuel Malzac and said Blanche Malzac, his wife, lived together for a period of four or five weeks, and during said time the said Malzac supported and cared for said child. That deceased did not in any way pay any money to Alphonse Malzac, for the support or maintenance of his son. That deceased carried a life insurance policy for $1,000 in the Brotherhood of American Yeoman, the beneficiaries as named therein were Lucy Malzac, his mother, and Samuel Malzac, Jr., his son, each to receive one-half of said $1,000 at deceased's death. That the grandfather, Alphonse Malzac, caused to be issued a life insurance policy in the Metropolitan Life Insurance Company, Policy No. 48107514, premium 10 cents per week, beneficiary named therein being Alphonse Malzac, grandfather, said policy being on the life of Samuel Malzac, Jr. That at the time said policy was issued, Samuel Malzac, deceased, signed a paper authorizing the Metropolitan Life Insurance Company to issue the said policy to said Alphonse Malzac, as beneficiary. That at said time said Alphonse Malzac attempted to adopt said Samuel Malzac, Jr., but said adoption proceedings were not completed. That deceased at various times, when out of work, would make his home with Alphonse Malzac, his father, but at said times would not in any way contribute to the sup

port of his minor son, nor would he pay anything to his father, Alphonse Malzac, except by assisting a little around the small farm owned by said Alphonse Malzac. Therefore the only question in dispute is as to whether or not Samuel Malzac, Jr., is a dependent, under the terms of the Michigan Workmen's Compensation Law, herein described." The accident in question happened on December 13, 1913.

It is contended by respondents that no dependency is shown in this case and therefore no compensation is payable, the contention being based upon the claim that no contributions were being in fact made by the father for the support of ap plicant at or immediately prior to the time of his death. It is contended on behalf of the applicant that he is wholly dependent.

This squarely presents for determination the question of the application of the Workmen's Compensation Law in cases of minor children who do not fall within the class covered by the conclusive presumption of dependency, when the father or other parent is taken away by an industrial accident. Where the father is entirely supporting such child or children, or has been making material contributions for their support, little difficulty is experienced in applying the law. However, many cases arise where by reason of moving, financial difficulties, changes in families, or any of the numerous arrangements under which chidren are cared for by relatives, friends or organizations, dependency cannot be determined on the basis of past contributions and support furnished by the deceased parent, as no such basis exists. It seems clear that the law does not intend to limit dependency of minor chil dren to cases where actual support was being furnished or contributions made, as such a rule would in many instances leave infant and posthumus children outside of the benefits of the law, which was clearly intended for their protection. The English courts, including the House of Lords, have established the rule that posthumus children are dependents within the meaning of the British Act, which in this respect is substantially the same as ours, holding that a reasonable

anticipation that the children would be maintained is a sufficient basis. Orrell Colliery Company vs. Schofield, 2 B. W. C. C. 295.

From a careful examination of the authorities it seems clear that the word "dependent" is used in Workmen's Compensation Laws to describe or designate a state or condition of the person referred to, having regard to his class and position, and not one who merely derived a benefit from the earnings of the deceased workman. Boyd's Workmen's Compensation, 496; Lloyd v. Powell Coal Co., 7 B. W. C. C., 333. The confusion on this point that seems to have arisen in connection with the case of New Monckton Collieries, Ltd. v. Keeling, 4 B. W. C. C., 332, is in the judgment of the Board cleared up by the case of Young v. Niddrie & Benhar Coal Company, Ltd., 6 B. W. C. C. 782, the latter case being decided by the House of Lords in July, 1913, some two years after the decis ion in the Keeling case. The Keeling case is referred to in some of the text books as "the great case that finally settles the law on the whole subject." Bradbury's Workmen's Compensation Law, 573. The conclusion there reached by the House of Lords that the dependency of the wife, who was not being supported by her husband, was not established by the mere fact of the existence of a legal obligation to support, is made prominent. The Young case above cited distinguishes the Keeling Case and supplements it particularly with reference to minor children. In the Young case, it was contended that the true question is "Was the applicant actually receiving support from one who was under an obligation to give support, and who was also the servant of the master whom it is proposed to make liable in compensation ?” As to this proposition the Court say:

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"I cannot agree with this view of the true question. I agree that a mere legal right may not, in certain circumstances, be sufficient. ** The true question in the present case is, in my opinion, whether there was, as one of the facts to be taken into account, an effective and valuable legal right. If there was such a right, and there was no legal difficulty in the way of enforcing it, then the mere fact that a want of opportunity to resort to it, which might have proved only

temporary, had reduced the mother and children for the time to liv ing on charity, cannot affect the conclusion that by the father's death they lost something on which they could depend. * * I am of the opinion that these children were wholly dependent. They had the right to look to their father for maintenance. # * It was only by assistance from their brothers, assistance which might have ceased at any moment, that they were saved from actual want."

Again in the same case, Page 782, it is said:

"There may be cases in which the husband's legal obligation to support his wife may be held to be suspended, but when that legal obligation, not discharged by the husband, concurs with total destitution on the part of the wife and inability to support herself, the bare fact that at the date of his death the husband was not implementing his obligation is not sufficient to prevent us from holding that the wife was wholly dependent on him. Neither, in my opinion, is the question affected by the fact that during the husband's absence and neglect the wife was kept from starvation by the casual charity of strangers, or even relatives."

The rule laid down in the Young case may be fairly summed up as holding that where there is a direct legal obligation to support, as in the case of a father to his minor children, coupled with the reasonable probability of such obligation being fulfilled by furnishing such support either voluntarily or involuntarily, dependency is established, even though no actual contributions or support were in fact being furnished prior to the death of the workman. This is not in conflict with the case of Pinel v. Rapid Railway System, 184 Mich., 169, as in that case the obligation of the deceased to support the applicant, who was his mother, was indirect, and did not in fact become a legal obligation until made so by proper legal proceedings. On the other hand, the obligation of a father to support his children is direct and immediate. The rule is also in harmony with the case of Ingersoll v. Detroit & Mackinac Railway Co., 163 Mich., 268. In the latter case, suit was brought for a wife and infant child who were residing in another state and receiving no contributions or support from the deceased workman. The trial court directed a verdict for defendant on the ground that there was no de